Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West
Guelph, (Ontario) N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Seventh Street Municipal Drain No. 1
City of St. Catharines
Seventh Street Municipal Drain No. 1 (RE) 2002 ONAFRAAT 46
STATUTE:
Drainage Act
HEARING:
December 10, 2002
DATE OF DECISION:
December 24, 2002
2002-46
NEUTRAL CITATION:
2002 ONAFRAAT 46
Seventh Street Municipal Drain No. 1
City of St. Catharines
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Arnold and Sandra Abrams under Sections 48 and 54 of the Drainage Act from the engineer’s report dated April 8, 2002 on the Seventh Street Municipal Drain No. 1 in the City of St. Catharines.
Before:
Jack Young, Vice Chair; Terry Denison, Vice Chair; Tom Hall, Member
Appearances:
Allard Colyn, representing the appellants, Arnold and Sandra Abrams
Lisa Valentini, counsel to the respondent, the City of St. Catharines
Kent Schachowskoj, P. Eng., engineer who prepared the report.
Arnold Abrams, appellant
Mike Hadala, assessed landowner
Doug Overholt, assessed landowner
DECISION OF THE TRIBUNAL
This appeal was heard in St. Catharines, Ontario on December 10, 2002. Mr. and Mrs. Arnold and Sandra Abrams appealed from the engineer's report by Wiebe Engineering Group Inc. dated April 8, 2002 (the report) and the Court of Revision on the Seventh Street Municipal Drain No. 1 in the City of St. Catharines (the Municipality).
Mr. Jim Powell, Clerk of the Municipality performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report dated April 8, 2002 on the Seventh Street Municipal Drain No. 1▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
At the outset of the hearing, Ms. Lisa Valentini, representing the municipality, indicated that a settlement had been reached with Mr. and Mrs. Abrams, subject to the approval of the Tribunal. Copies of the proposed settlement were provided in advance to three of four landowners directly affected by the proposed settlement and at the Hearing to assessed landowners in attendance.
In the course of the hearing, Mr. Doug Overholt requested a change to the design of the drain to shorten a culvert on his property.
Subsection 54 (1) of the Act states:
- (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating Municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).
Subsection 48(1) of the Act states:
- (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,ay appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1).
Section 100 of the Act allows the Tribunal to extend the time in which an appeal may be initiated. It reads:
- The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1990, c. D.17, s. 100.
The Issue
The issues before the Tribunal were:
Should the engineer's report be modified as indicated in the Minutes of Settlement provided to the Tribunal?
Should the engineer's report be modified such that the culvert on the property identified by Roll No. 43-076 (Overholt property) is shortened to 5 metres, from 40 metres?
The Evidence
Abrams Appeal
Mr. Kent Schachowskoj, P. Eng. told the Tribunal the Main Drain of the Seventh Street Municipal Drain was an existing open channel which was to be improved as the result of a petition made under the Drainage Act by the Director of Public Works for the Regional Municipality of Niagara. He said that he endorsed the proposed settlement agreement. Mr. Schachowskoj explained that once the appeal was initiated, subsequent investigation revealed that there was a conflict between the septic header pipe on the Abrams property (Roll No. 43-075) and the proposed drain. To solve this problem, he recommended that:
The upper portion of the main drain be re-routed from the upstream limit where it crosses Seventh Street. The new route would run the drain north along the west side of the road and then west along the property line between the Abrams property (Roll No. 43-075) and the Overholt property (Roll No. 43-076) and return the original alignment at Station 1+118.
A storm sewer be installed on the west shoulder of Seventh Street .
Some driveway culverts be removed and some inlet pipes be installed to accommodate the new route.
An existing right of way be used during installation and the driveway on the Abrams property be used to access the drain for maintenance.
Mr. Schachowskoj verified that the length of drain adjacent to the Hadala property (Roll No. 43-074) would be a closed pipe. He said the downstream portion of the drain was predominantly an open ditch and that there was no changes proposed to that portion in the settlement agreement.
Ms. Valentini filed amended minutes of settlement with the Tribunal. She explained that minor wording changes, agreed to by the parties, had been made. Included in the minutes of settlement was an addendum report which contained Mr. Schachowskoj's recommended changes to his report.
Mr. Allard Colyn indicated the appellants were in accord with the proposed changes to the report prepared by Mr. Schachowskoj and the minutes of settlement prepared by Ms. Valentini. Mr. Abrams said he was formally withdrawing his appeal. Mr. Colyn verified that he was authorised to act on Mrs. Abrams behalf and that her appeal was also withdrawn, subject to the Tribunal accepting the minutes of settlement.
Ms. Valentini provided the Tribunal with a letter signed by Mr. Joe Cousins, Niagara Public Works Department by which he indicated the Regional Municipality of Niagara was prepared to accept a special assessment as a result of the proposed re-routing of the drainage works. She told the Tribunal that Mr. Cousins had advised her he was authorised to commit to the expenditure of the estimated $60,000 required.
Ms. Valentini explained that the owners of the Wiebe property (Roll No. 43-073) received the Notice of Hearing but not the proposed amendment to the engineer's report. Mr. Schachowskoj explained that the assessment on this property would be reduced by $50 as a result of the proposed changes and that the property would no longer receive an allowance of $550.
Mr. Hadala asked if an existing open ditch running south to north on his property and the Abrams property would be retained. Mr. Schachowskoj explained it would not be part of the municipal drain but that Mr. Hadala should be able to continue to use it under the common law. He also said Mr. Hadala could petition to have it made a branch drain of the Seventh Street Drain No. 1.
Overholt Culvert
Mr. Doug Overholt asked the Tribunal to order that the culvert on his property (Roll No. 43-076) be shortened to reduce the cost of the drainage project. Mr. Schachowskoj said the existing 40 metre culvert could be replaced with a 5 metre culvert to provide a crossing. He explained the culvert was assessed as a benefit against the landowner and the Niagara Region Road Authority. He said that their respective assessments would be reduced by $6,700 (Overholt property) and $5,920 (road authority) if the shorter culvert were used. Mr. Overholt indicated he supported Mr. Schachowskoj's suggestion.
Mr. Overholt also told the Tribunal that he was dissatisfied with the amount of his allowance but that he had not appealed it.
The Findings
No party to the hearing objected to the minutes of settlement submitted to the Tribunal with regard to Mr. and Mrs. Abrams appeal. The Tribunal is satisfied that Mr. and Mrs. Abrams had consented to the minutes of settlement and that the Regional Municipality of Niagara agreed with its increased assessment, detailed in a proposed addendum to the engineer's report which was contained in the minutes of settlement.
The Tribunal was advised by the counsel to the Municipality that the landowners most directly affected by the proposed settlement were provided a copy of the minutes of settlement prior to the hearing, with the exception of the owners of the property identified by Roll No. 43-073. Copies of the minutes of settlement were made available to all landowners in attendance at the hearing. All landowners assessed or compensated on the Seventh Street Municipal Drain No. 1 were notified of the hearing of Mr. and Mrs. Abrams' appeal. The Tribunal is satisfied that all affected landowners had adequate notice that changes to the drainage works and assessment schedule were to be considered at the hearing.
The Tribunal accepts Mr. Schachowskoj's uncontested evidence that the proposed amendment to his report will address the concern with Mr. and Mrs. Abrams' septic system. The Tribunal will order that the engineer's report be amended to incorporate the proposal in the minutes of settlement, as amended.
Mr. Hadala was concerned that the existing private ditch be maintained. That part of the existing watercourse is not part of the revised drainage project but is to be maintained by the adjoining landowners under the common law. The Tribunal notes that Mr. Hadala may petition for it to be converted into a branch drain if he wishes it to be made a municipal drain under the Act.
The Tribunal commends the parties for resolving their issues without a lengthy hearing and the counsel for the Municipality for assisting in the settlement process.
With regard to Mr. Overholt's request regarding the culvert on his property, the Tribunal finds that reducing the length of this culvert will not negatively impact any landowner assessed on the drainage works. The overall cost of the project and the cost to Mr. and Mrs. Overholt and the Niagara Region Road Authority will be reduced if a shorter culvert is installed. The Tribunal finds that the length of the culvert on the Overholt property should be 5 metres in length.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- The engineer is directed to incorporate the changes to the engineer's report which are recommended in the addendum report dated December 10, 2002 into the report on the Seventh Street Municipal Drain No. 1 dated April 8, 2002. The text of the report is to be revised as described in the addendum report. The engineer is directed to amend the Cost Schedule and the Assessment Schedule as described in points 3 and 4 of this order. The engineer is directed to amend the Allowances Schedule as detailed below:
Original Allowances
Roll No.
Owner
Section 29
Section 30
Total
43-076
Overholt, D. & C.
$ 6,945.00
$ 2,670.00
$ 9,615.00
43-075
Abrams, A. & S.
3,290.00
1,495.00
4,785.00
43-074
Hadala, M.
1,800.00
815.00
2,615.00
43-073
Wiebe, D. & P.
380.00
170.00
550.00
Total Allowances
$ 24,505.00
$ 10,395.00
$ 34,900.00
Revised Allowances
Roll No.
Owner
Section 29
Section 30
Total
43-076
Overholt, D. & C.
$ 6,995.00
$ 2,720.00
$ 9,715.00
43-075
Abrams, A. & S.
1,145.00
1,145.00
2,290.00
43-074
Hadala, M.
43-073
Wiebe, D. & P.
Total Allowances
$ 20,230.00
$ 9,110.00
$ 29,340.00
The engineer is directed to revise the report on the Seventh Street Municipal Drain No. 1 dated April 8, 2002 to replace the 40 metre culvert proposed on the Overholt property (Roll No. 43-076) with a 5 metre culvert. The engineer is ordered to reduce the benefit assessment of this property by $6,700 and reduce the benefit assessment on the Seventh Street - Regional Road 34 by $5,920. The engineer is to amend the Cost Estimate Schedule and Assessment Schedule as described in points 3 and 4 of this order.
The engineer is to amend the Cost Estimate Schedule as follows:
Cost Estimate
Original Cost
Changes from
Changes from
Final
Drain
Culvert
Estimated
CONSTRUCTION
Re-alignment
Deletion
Cost
Main Drain
1 a) Channel Works
11,700.00
11,700.00
2 a) Culvert Cleanout
500.00
500.00
b) Culvert Replacement
22,200.00
-7,600.00
-10,700.00
3,900.00
c) Storm Sewers Works
0.00
53,000.00
53,000.00
3 a) Sediment Basins
500.00
500.00
b) Rip Rap Erosion Protection
2,400.00
2,400.00
Subtotal
37,300.00
45,400.00
-10,700.00
72,000.00
Contingency
3,800.00
4,500.00
-1,100.00
7,200.00
Total Construction - Main Drain
$41,100.00
$49,900.00
-$11,800.00
$79,200.00
Branch "A"
Total Construction - Branch "A"
30,500.00
30,500.00
Branch "B"
Total Construction - Branch "B"
15,900.00
15,900.00
Branch "C"
Total Construction - Branch "C"
69,900.00
69,900.00
ALLOWANCES
Total Allowances
34,900.00
-5,560.00
0.00
29,340.00
ADMINISTRATION COSTS
1 Interim Financing Allowance
7,900.00
2,500.00
0.00
10,400.00
2Preliminary Field Survey
2,750.00
2,750.00
3Final Report
32,100.00
3,500.00
0.00
35,600.00
4Expenses
1,000.00
1000.00
5Tendering and Inspection
20,400.00
3,000.00
0.00
23,400.00
Total Administration
64,150.00
5,250.00
0.00
69,400.00
GST
14,950.00
3,950.00
-820.00
18,080.00
TOTAL COST ESTIMATE
$271,400.00
$53,540.00
-$12,620.00
$316,070.00
- The engineer is to amend the Assessment Schedule as follows:
Assessment Schedule
Original Assessments
Roll No.
Owner
Benefit
Outlet
Total
43-076
Overholt, D. & C.
$ 11,711.00
$ 1,568.00
$ 13,279.00
43-075
Abrams, A. & S.
2,210.00
50.00
2,260.00
43-074
Hadala, M.
684.00
690.00
1,374.00
43-073
Wiebe, D. & P.
50.00
713.00
763.00
Total Landowners
$ 16,209.00
$ 28,309.00
$ 44,518.00
Seventh Street - Regional Road 34
52,071.00
4,862.00
56,933.00
Total Region of Niagara Roads
$ 52,071.00
$ 4,862.00
$ 56,933.00
Sub-total Lands and Roads
$ 78,835.00
$ 36,715.00
$ 115,550.00
Special Assessment - Reg. of Niagara
139,450.00
TOTAL ASSESSMENTS
$ 78,835.00
$ 36,715.00
$ 271,400.00
Revised Assessments (resulting from drain re-alignment only)
Roll No.
Owner
Benefit
Outlet
Total
43-076
Overholt, D. & C.
$ 9,740.00
$ 1,568.00
$ 11,308.00
43-075
Abrams, A. & S.
2,799.00
50.00
2,849.00
43-074
Hadala, M.
690.00
690.00
43-073
Wiebe, D. & P.
713.00
713.00
Total Landowners
$ 14,093.00
$ 28,309.00
$ 42,402.00
Seventh Street - Regional Road 34
40,347.00
4,862.00
45,209.00
Total Region of Niagara Roads
$ 40,347.00
$ 4,862.00
$ 45,209.00
Sub-total Lands and Roads
$ 64,995.00
$ 36,715.00
$ 101,710.00
Special Assessment - Reg. of Niagara
$ 210,580.00
TOTAL ASSESSMENTS
$ 64,995.00
$ 36,715.00
$ 328,690.00
Revised Assessments (resulting from re-alignment and culvert deletion)
Roll No.
Owner
Benefit
Outlet
Total
43-076
Overholt, D. & C.
$ 3,040.00
$ 1,568.00
$ 4,608.00
43-075
Abrams, A. & S.
2,799.00
50.00
2,849.00
43-074
Hadala, M.
690.00
690.00
43-073
Wiebe, D. & P.
713.00
713.00
Total Landowners
$ 7,393.00
$ 28,309.00
$ 35,702.00
Seventh Street - Regional Road 34
34,427.00
4,862.00
39,289.00
Total Region of Niagara Roads
$ 34,427.00
$ 4,862.00
$ 39,289.00
Sub-total Lands and Roads
$ 52,375.00
$ 36,715.00
$ 89,090.00
Special Assessment - Reg. of Niagara
210,580.00
TOTAL ASSESSMENTS
$ 52,375.00
$ 36,715.00
$ 316,070.00
- The engineer is directed to revise the report on the Seventh Street Municipal Drain No. 1 dated April 8, 2002 to incorporate the following special assessment to the Region of Niagara:
Special Assessment to Region of Niagara
Original
Changes from
Revised Assessment
Assessment
Drain
Re-alignment
- Seventh Street Roadside Ditch Works
a) Branch "A" Total Cost
$ 30,500.00
$ 30,500.00
$ 30,500.00
b) Branch "B" Total Cost
15,900.00
15,900.00
15,900.00
c) Branch "C" Total Cost less Second Ave Works
59,000.00
59,000.00
59,000.00
d) Main Drain Storm Sewer
57,500.00
57,500.00
- Portion of Administration
24,900.00
33,900.00
33,900.00
- G.S.T.
9,150.00
13,780.00
13,780.00
Total Special Assessment - Region of Niagara
$ 139,450.00
$ 210,580.00
$ 210,580.00
Total Estimated Cost Seventh Street Drain
$ 271,400.00
$ 328,690.00
$ 316,070.00
Less Special Assessments
$ 155,850.00
$ 226,980.00
$ 226,980.00
Amount Assessed against Drainage Area
$ 115,550.00
$ 101,710.00
$ 89,090.00
- The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
Dated at Gravenhurst, Ontario this 24th day of December, 2002.